REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2398 OF 2002

Sameer Kumar Pal & Another  ... Appellants

Versus

Sheikh Akbar & Others          ... Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and order of  

the  High  Court  of  Madhya  Pradesh  at  Jabalpur  dated  

17.8.2001 passed in Second Appeal No.596 of 1999.    

2. The appellant is particularly aggrieved by the impugned  

judgment because the concurrent findings of fact have been  

set aside by the High Court in the second appeal without any  

basis, justification or cogent grounds.

3. Brief  facts  necessary  to  dispose  of  this  appeal  are  

recapitulated as under:

Appellants Sameer Kumar Pal and Subhash Chandra Pal,  

both sons of Laxminarayan Pal (who were the plaintiffs in the  

trial  court),  filed  a  suit  in  the  Court  of  the  Civil  Judge,  

Jabalpur.  In the plaint, it was clearly incorporated that the  

appellants  were  the  owners  in  possession  of  Shop No.1214  

(Old  No.892),  New  Corporation  Chowk,  Wright  Town,  

Jabalpur.  They purchased the said shop vide sale-deed dated  

31.12.1991.

4. The  appellants  filed  a  suit  for  eviction  against  the  

defendants (respondents  herein)  under  section 12(1)(c)  (that  

the  tenant  has  created  nuisance),  12(1)(f)  (for  bona  fide  

requirement  of  landlord  for  non-residential  purposes)  and  

12(1)(g)  (bona  fide   requirements  of  landlord  to  carry  out  

repairs) of the M.P. Accommodation Control Act, 1961.  The  

relevant parts of section 12 of the Act are set out as under:

“12.  Restriction  on  eviction  of  tenants.—(1)  Notwithstanding anything to the contrary contained  in any other law or contract, no suit shall be filed in  any civil court against a tenant for his eviction from  any accommodation except on one or more of the  following grounds, only, namely—

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(a) – (b) x x x

(c) that  the  tenant  or  any  person  residing  with  him has created a nuisance or has done any  act which is inconsistent with the purpose for  which he was admitted to the tenancy of the  accommodation,  or  which  is  likely  to  affect  adversely and substantially the interest of the   landlord therein:

(d) – (e) x x x

(f) that the accommodation let for non-residential  purpose is required bona fide by the landlord  for  the purpose of  continuing or starting his  business or that of any of his major sons or  unmarried daughters if he is the owner thereof  or  for  any  person  for  whose  benefit  the  accommodation is held and that the landlord  or  such  person  has  no  other  reasonably  suitable non-residential accommodation of his  own  in  his  occupation  in  the  city  or  town  concerned;

(g) that  the accommodation has become unsafe,  or unfit for human habitation and is required  bona  fide  by  the  landlord  for  carrying  out  repairs  which cannot  be  carried  out  without  the accommodation being vacated.”

5. In  the  written  statement  filed  in  the  trial  court,  the  

respondents  herein  raised  the  main  objection  that  the  

appellants herein are not the owners of the suit property and  

the trial court had no jurisdiction to adjudicate the matter as  

the  suit  property  has  been  a  Wakf  property.   It  may  be  

pertinent  to  mention  that  in  the  written  statement  the  

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respondents  nowhere  took  the  plea  that  the  suit  property,  

namely  ‘Madras  Hotel’  is  a  joint  family  property.   The  trial  

court  held  that  the  appellants  were  in  bona  fide need  of  

carrying  on  the  business  of  sweets  and  for  running  a  

restaurant. No other vacant property was in possession of the  

appellants  in  Jabalpur.   It  was  also  held  that  the  shop  in  

question  is  very  old,  unsafe  and  in  dilapidated  condition.  

There is need to repair and carry out some structural changes  

in the shop which cannot be carried out unless the same is  

made available to the appellants.  The trial court clearly held  

that the appellants are in bona fide need of the suit property.  

The trial court also held that the respondents have not paid  

rent since September, 1992 and decided the issue of default in  

favour of the appellants.  The trial court categorically held that  

the suit property is not the Wakf property and decreed the suit  

of the appellants.

6. The respondents preferred first appeal before the court of  

XIth Additional District Judge, Jabalpur.  The entire evidence  

was re-appreciated by the appellate court independently and  

the court clearly held that the respondents have failed to prove  

that  the  appellants  are  in  possession  of  any  other  non-

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residential accommodation in the entire city of Jabalpur.  The  

first appellate court upheld the findings of the trial court.  It  

may be  pertinent  to  mention  that  before  the  first  appellate  

court also, no plea was taken that the property in question,  

namely the ‘Madras Hotel’, was a joint family property.  The  

first appellate court dismissed the appeal.

7. Respondent nos. 1 & 2, aggrieved by the judgment of the  

XIth Additional District Judge, Jabalpur, preferred a second  

appeal before the High Court of Madhya Pradesh at Jabalpur.

8. The High Court in the impugned judgment, without any  

pleadings  or  basis,  held  that  the  property  namely  ‘Madras  

Hotel’ is a joint family property.  The High Court erroneously  

observed  that  the  property  namely  ‘Madras  Hotel’  was  

purchased by the father of the appellants and his brothers,  

whereas in fact the property was purchased by the appellants  

vide sale deed dated 31.12.1991.  The assumption of wrong  

fact has led to total erroneous finding and conclusion.  The  

High Court in para 8 observed as under:

“……It is firmly established that the building known  as ‘Madras Hotel’ belongs to Laxminarayan Pal and  his two sons who are the plaintiffs.   That is their  joint family property. This building was purchased  

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by Laxminarayan when he was carrying on business  with his two brothers and the partition took place  long after the acquisition of that building.  In that  partition that building was allotted to Laxminarayan  alone……”

9. The High Court in the impugned judgment weaved out an  

entirely new case.  Neither there was any pleading nor it was  

the case of the respondents either before the trial court or the  

first appellate court.  The High Court gravely erred in arriving  

at  the  finding  without  any  basis  whatsoever.   Subhash  

Chandra Pal, PW1 was examined by the trial court and in his  

testimony he categorically stated that he and his elder brother  

Sameer Kumar were owners of the property in question.

10. The appellants have relied on Mst. Rukhmabai v.  Lala  

Laxminarayan & Others  AIR 1960 SC 335 in  which  this  

court  held  that  there  is  no  presumption  that  any  property  

whether moveable or immoveable held by a member of a joint  

Hindu family is joint family property.  The burden lies upon  

the  person  who  asserts  that  a  particular  property  is  joint  

family property to establish that fact.

11. The appellants further relied on Kuppala Obul Reddy v.  

Bonala Venpata Narayan Reddy (dead)  by LRs. (1984)  3  

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SCC 447 in which this court held that there were no pleadings  

as to the properties being joint properties and no issue as to  

joint family had been raised and there was no proper evidence  

to  make  out  any  case  of  the  properties  being  joint  family  

properties, was raised and no such issue could possibly have  

been raised in absence of the pleadings.   The court further  

held that in absence of any pleading and any issue and further  

in the absence of any proper evidence, the view expressed by  

the learned judge of the High Court that the properties were  

joint family properties is clearly unwarranted.  There may be  

presumption that there is a Hindu Joint Family but there can  

be no presumption that the joint family possesses joint family  

properties.

12. The  appellants  further  relied  on  Mudi  Gowda  

Gowdappa  Sankh  v.  Ram  Chandra  Ravagowda  Sankh  

(1969)  1 SCC 386 wherein  this  Court  held  that,  of  course,  

there is no presumption that merely because the family is joint  

so  the  property  is  also  joint.   So  the  person  alleging  the  

property to be joint family property must prove it.   In that  

case, this Court further held that the burden of proving that  

any particular property is joint family property is, therefore, in  

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the  first  instance,  upon  the  person  who  claims  it  to  be  

coparcenary property.  But if the possession of a nucleus of  

the  joint  family  property  is  either  admitted  or  proved,  any  

acquisition made by a member of the joint family is presumed  

to be joint family property.  The Court carved out an exception  

and observed that, “this is, however, subject to the limitation  

that the joint family property must be such as with its aid the  

property in question could have been acquired.  It is only after  

the possession of an adequate nucleus is shown, that the onus  

shifts  on  to  the  person  who  claims  the  property  as  self-

acquisition  to  affirmatively  make out  that  the  property  was  

acquired without any aid from the family estate.”   In  Mudi  

Gowda Gowdappa Sankh (supra),  this court  heavily  relied  

upon  the  ratio  of  Privy  Council  judgment  in  Randhi  

Appalaswami  v.  Randhi Suryanarayanamurti  & Others  

ILR 1948 Mad 440 wherein the legal position of Hindu Law  

has been beautifully articulated by Sir John Beaumont.  The  

relevant portion of the judgment is reproduced as under:

“Proof  of the existence of a joint family does not  lead to the presumption that property held by any  member of the family is joint, and the burden rests  upon  anyone  asserting  that  any  item  of  property  was  joint  to  establish  the  fact.   But  where  it  is  established  that  the  family  possessed  some  joint  

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property  which from its  nature and relative  value  may  have  formed  the  nucleus  from  which  the  property in question may have been acquired, the  burden shifts to the party alleging self-acquisition to  establish  affirmatively  that  the  property  was  acquired  without  the  aid  of  the  joint  family  property.”

13. In this view of the matter, we are constrained to set aside  

the impugned judgment of the High Court.  The High Court  

was not justified in reversing the concurrent findings of fact in  

this  case.   Consequently,  the  appeal  is  allowed  and  the  

impugned judgment of the High Court is set aside and that the  

judgment and order of the trial court, as affirmed by the first  

appellate court, is restored.  In the facts and circumstances of  

the case, the parties are directed to bear their own costs.

....……….……………………..J.                                                     (Dalveer Bhandari)

.…..…….……………………..J.                                                      (K.S. Radhakrishnan) New Delhi; July 28, 2010  

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